Hearne, Timothy

• Court: Court of Criminal Appeals of Texas
• Decided: June 26, 2013
• Docket: WR-77,659-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. WR-77,659-01 EX PARTE TIMOTHY HEARNE, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. 1149907-A IN THE 337TH DISTRICT COURT

FROM HARRIS COUNTY

Per curiam. Alcala, J., not participating.

O R D E R

Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the clerk of the trial court transmitted to this Court this application for a writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of capital murder and sentened to imprisonment for life. The First Court of Appeals affirmed his conviction. Hearne v. State, No. 01-08-00126-CR (Tex. App.--Houston [1st Dist.] 2009, pet. ref'd).

Applicant contends, among other things, that trial counsel rendered ineffective assistance because she failed to object that the trial judge improperly commented on the weight of the evidence when he said, "That's what the defendant said." The trial court made findings of fact and conclusions of law and recommended that we deny this claim. We believe that the trial court should further determine, assuming counsel's conduct was deficient, whether, given the evidence presented at trial, there is a reasonable probability that the result would have been different had counsel properly objected. ⁽¹⁾ Strickland v. Washington, 466 U.S. 668, 694 (1984).

This application will be held in abeyance until the trial court has resolved the issues. The issues shall be resolved within 90 days of this order. Any extensions of time shall be obtained from this Court.

Filed: June 26, 2013

Do not publish

1. We recognize that the trial court concluded that Applicant had not demonstrated that there is a reasonable probability that the result would have been different. We are not persuaded, however, that this conclusion is entirely supported by the record.